Under the Vienna Convention, it is up to you to decide whether or not you want to contact your consulate. You are not required to contact your home government. However, many countries have signed treaties with the United States requiring U.S. officials to automatically contact them if their citizens are arrested in the United States.292 This means that even if you do not want your consulate to know that you have been arrested, the police might tell them anyway. But, the police often forget or do not bother to call the consulate. If you want to talk to your consulate, you should always tell the police.
You should think carefully about whether or not you want to contact your consulate. Some consulates are more helpful than others. Based on what you know about your own government, you may already know whether it would be willing and able to help you. Some consulates will send someone to visit you immediately, contact your family, and help you find a lawyer. Others have only limited office hours and resources and cannot or will not visit prisoners at all. Some governments have
292. As of October 2007, these countries with bilateral treaties, which should receive notification immediately upon your arrest, included Algeria, Antigua and Barbuda, Armenia, Azerbaijan, the Bahamas, Barbados, Belarus, Belize, Brunei, Bulgaria, China (People’s Republic), Costa Rica, Cyprus, Czech Republic, Dominica, Fiji, Gambia, Georgia, Ghana, Grenada, Guyana, Hong Kong, Hungary, Jamaica, Kazakhstan, Kiribati, Kuwait, Kyrgyzstan, Malaysia, Malta, Mauritius, Moldova, Mongolia, Nigeria, Philippines, Poland (non-permanent residents only), Romania, Russia, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Slovakia, Tajikistan, Tanzania, Tonga, Trinidad and Tobago, Tunisia, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uzbekistan, Zambia, and Zimbabwe. All successor states to the Soviet Union are still covered by an agreement the United States had with the U.S.S.R. British dependencies are covered by the agreement with the United Kingdom. These include Anguilla, the British Virgin Islands, Bermuda, Montserrat, and the Turks and Caicos Islands. For the most recent list of mandatory notification states, see Consular Notification and Access, Part 5: Legal Material, Agreements Pertaining to Consular Functions, available at http://travel.state.gov/law/consular/consular_744.html#agreements (last visited Oct. 20, 2008).
The Department of State can provide more specific guidance in particular cases. “Foreign nationals subject to mandatory notification requirements should otherwise be treated like foreign nationals not subject to the mandatory notification requirement. Thus, for example, the foreign national should be informed that notification has been made and advised that he/she may also specifically request consular assistance from his or her consular officials.” U.S. Department of State, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, available at http://travel.state.gov/pdf/CNA_book.pdf (last visited Oct. 20, 2008). The State Department adds, “Privacy concerns or the possibility that a foreign national may have a legitimate fear of persecution or other mistreatment by his/her government may exist in some mandatory notification cases. The notification requirement should still be honored, but it is possible to take precautions regarding the disclosure of information. For example, it may not be necessary to provide information about why a foreign national is in detention.” Most importantly, “under no circumstances should any information indicating that a foreign national may have applied for asylum in the United States or elsewhere be disclosed to that person’s government.” U.S. Department of State, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, available at http://travel.state.gov/pdf/CNA_book.pdf (last visited Oct. 20, 2008).
The Department of State can provide more specific guidance in particular cases.
allegedly used their consular officers to locate their political opponents.293 If you are in the United States because you were fleeing persecution in your home country, contacting your home government could be a bad idea.
At the very least, you should try to discuss the idea of contacting your consulate with a lawyer.
Many criminal defense lawyers do not know about the Vienna Convention, and they might not know consular assistance is available. Your lawyer may not even know that you are a foreign citizen unless you specifically mention it. If you choose not to contact the consulate, you may want to contact a private organization instead. Some organizations that you may want to contact are listed in JLM Appendix IV.
1. Consulate Assistance with Legal and Non-Legal Matters in Criminal Cases Good consular officers will visit you in prison (or even at the police precinct); explain to you what is going on; explain to you how the U.S. legal system works; contact your family members for you; help you find a lawyer; help locate your medical, military, or school records; provide you with emergency financial assistance; and make sure that you are being treated well in prison. They will put pressure on the local government to see that your rights are not violated and will provide your lawyer with interpreters, consultants, or investigators.294 Your consulate may be a good place to call if your lawyer tells you things that you do not understand, if you are not sure that your lawyer is good or trustworthy, or if you are trying to make an important decision such as whether to accept a plea bargain or whether to testify. For example, if you are not familiar with the plea bargaining system in the United States, your consulate may be able to explain how it differs from the legal system in your home country. If you are suspected of having committed a crime in the United States, the consulate cannot prevent you from being tried for it, but it can help to make sure that you receive a fair trial.
It is usually better to call the consulate with specific questions or simple requests than to call and say “I need help” or “I’m in trouble.” Consular officers are not lawyers. They usually cannot give you money for a lawyer and may not take an interest in your case at all unless you are facing very serious charges. However, if you have a specific request—such as “Can you help me contact my mother back home?”, “Can you recommend a good attorney?”, “Can you help me get my medical records from my home city?”, or “Can you find a priest who will visit me in prison?”—the consulate may be able to help you even if you are facing only minor charges.
2. Gathering Mitigating Evidence in Death Penalty Cases
293. United Nations Conference on Consular Relations, UN Doc. A/CONF.25/16 (1962) (remark of a delegate from the United Kingdom).
294. For example, when a U.S. citizen is arrested abroad, U.S. consular officers are expected to visit that person as soon as possible. U.S. Department of State, 7 Foreign Affairs Manual 422-1.1 (Sept. 3, 2004). This visit provides an opportunity for the consular officer “to explain the legal and judicial procedures of the host government and the detainee’s rights under that government at a time when such information is most useful.” U.S. Department of State, 7 Foreign Affairs Manual 422(f) (Sept. 3, 2004). The U.S. Embassy may also get local U.S. citizens to volunteer to visit the U.S. citizen in prison. U.S. Department of State, 7 Foreign Affairs Manual 422-1.4 (Sept. 3, 2004), available at http://www.state.gov/m/a/dir/regs/fam/. Each U.S. consular post is also required to maintain a list of defense attorneys and to exclude attorneys with bad reputations from the list. U.S. Department of State, 7 Foreign Affairs Manual 991(a), 993 (Jan. 26, 2006). If the U.S. citizen’s rights are being violated in the prison or in court, the U.S. consulate may make protests to the host government at the local level, and if necessary, at the state or federal level as well. U.S. Department of State, 7 Foreign Affairs Manual 426.3 (Sept. 3, 2004). Throughout the pretrial period, the consular officer is expected to visit the prisoner regularly as a sort of case worker or “case officer.” The manual states that the consular officer should become “thoroughly familiar with the specific facts and problems of the prisoner’s situation.” U.S. Department of State, 7 Foreign Affairs Manual 436 (Aug. 26, 2004). This familiarity should help the officer to “become more efficient and responsive to the prisoner’s needs” and a “more effective liaison with attorneys, court and prison officials, and prosecutors.” U.S. Department of State, 7 Foreign Affairs Manual 436 (Aug. 26, 2004). Again, some consulates are better than others, and how your consular officer behaves will depend upon your home country’s laws, not U.S. laws. Some countries do not have a foreign affairs manual like the one used by the U.S. State Department, and some have so few consular officers compared to the number of its nationals in the United States that it is impossible to visit all prisoners.
Not all consulates can help all criminal defendants, but many of them are willing to help with death penalty cases. Many countries, particularly Latin American countries, have taken a strong stance against the death penalty and will assist your defense attorney considerably if you are facing a possible death sentence. One of the main services consulates can provide to your lawyer is help gathering mitigating evidence, especially in your country of origin. Mitigating evidence is evidence that can be presented during the sentencing phase of your trial to show why you should not receive the death penalty, either because of positive factors (for example, you care for your ailing grandmother, are a good student, or have never been in trouble before) or because of negative factors (for example, you were physically abused as a child or suffer from a mental disorder).
A consulate may assist defendants in many ways. For example, in various cases involving Mexican citizens, the Mexican Consulate has organized testimony, helped locate and produce witnesses, written letters to judges and prosecutors, submitted affidavits to courts, met with defendants’ lawyers to discuss plea bargains, arranged consular visits, verified records and documented family history, and assisted with translation.295 Mexico, Ecuador, Canada, Paraguay, Honduras, the Dominican Republic, and Germany have also shown a particular interest in death penalty cases and have all tried to assist defendants facing the death penalty during appeals in cases in which the police failed to contact the consulate before trial.296
3. Assistance When Your Rights Have Been Violated
Most consulates will help you if your rights are being seriously violated. For example, if you were beaten by the police or prison guards, most consulates will step in to assist you. When Abner Louima, a Haitian immigrant, was beaten and tortured by New York City police on August 9, 1997, the Haitian Consulate helped bring public attention to his situation and helped put pressure on governmental authorities to bring charges against the police officers who were allegedly involved.297
4. Assistance with Deportation Proceedings
If you are to be “removed” (deported)298 from the United States, consulates are usually notified of your status after the removal order becomes final so that they can process your travel papers.299 If you are facing removal proceedings, you should be notified of your right to consular access and should be allowed to communicate with your consulate before your hearing. This right is guaranteed not only by treaties but also by a U.S. Department of Homeland Security (“DHS”) regulation that implements the
295. Application Instituting Proceedings Submitted by the Government of the United Mexican States, Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), at 17–19 (Jan. 9, 2003), available at http://www.icj-cij.org/docket/files/128/1913.pdf.
296. See, e.g., LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998) (German nationals who were not given consular access before their convictions for murder were assisted in their post-conviction appeals by German consulate); Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997) (Mexico filed an amicus curiae brief on behalf of Mario Murphy, a Mexican national); Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996) (Canada submitted a brief on behalf of its citizen Joseph Stanley Faulder); Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998) (appeal of suit brought by Republic of Paraguay to vacate Breard’s conviction and sentence, challenging the dismissal of the original suit on subject matter jurisdiction grounds); Breard v. Greene, 523 U.S. 371, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998) (a separate civil suit brought by the Republic of Paraguay to overturn the conviction of Angel Francisco Breard, which the U.S. Supreme Court then considered along with Breard’s habeas petition in the U.S. Supreme Court). In the death penalty case of Carlos Santana, a citizen of the Dominican Republic who was sentenced to death in Texas, the ambassador from the Dominican Republic attempted to meet with the governor of Texas to stop the execution. Ronan Doherty, Note, Foreign Affairs v. Federalism: How State Control of Criminal Law Implicates Federal Responsibility Under International Law, 82 Va. L. Rev. 1281, 1328 (1996).
297. Interview with consular officer at the Haitian Consulate, in New York City (Apr. 7, 1998).
298. See JLM Supplement Chapter 1, “The Immigration Consequences of Criminal Activity” for an explanation of these terms and of immigration law and procedure in general.
299. Interview with Jamaican Deputy Consul-General, in New York City (Apr. 7, 1998).
Vienna Convention and other treaties.300 If the DHS fails to inform you of this right prior to the removal hearing, some federal courts will find the order of removal invalid. In a case of criminal conviction for illegal reentry into the United States, courts might even reverse the conviction if the initial removal hearing was conducted in violation of these regulations due to prejudice. This means that if having access to your consulate could have made a difference in your decision, the courts might reverse your conviction.301 When you appeal a removal decision, you should always raise this claim of prejudice if your right to consular access was violated. If you do raise the claim, however, you will again probably have to show prejudice—that having access to your consulate could have made a difference in your removal proceeding.302